United States v. Gregory C. Waugh , 189 F. App'x 871 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUL 10, 2006
No. 05-15697 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20229-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY CHRISTOPHER WAUGH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 10, 2006)
Before TJOFLAT, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Gregory Waugh pleaded guilty to (1) conspiracy to import 100 grams or
more of heroin in violation of 21 U.S.C. § 963; (2) importation of 100 grams or
more of heroin in violation of 21 U.S.C. §952(a); (3) conspiracy to possess with
intent to distribute 100 grams or more of heroin in violation of 21 U.S.C. § 846;
and (4) possession with intent to distribute 100 grams or more of heroin in
violation of 21 U.S.C. § 841(a)(1). He was sentenced to 135 months imprisonment
and appeals the sentence.
Waugh contends that the record is ambiguous regarding whether the district
court recognized that it had authority to depart downward from the guidelines
range based on Waugh’s medical condition, and thus, we should remand the case
for resentencing. He relies on our decision in United States v. Sanchez-Valencia,
148 F.3d 1273, 1274 (11th Cir. 1998) for the proposition that a district court must
clearly state on the record whether it believed it had authority to depart downward.
We lack jurisdiction to review a district court’s decision to deny a downward
departure unless the court incorrectly believed that it lacked authority to grant the
departure. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). We
have noted that “it would facilitate review if sentencing judges would state on the
record that they believe they have or do not have the authority to depart,”
Sanchez-Valencia, 148 F.3d at 1274, but we have never said that such a statement
is required. Instead, we have held that “when nothing in the record indicates
otherwise, we assume the sentencing court understood it had authority to depart
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downward.” United States v. Chase, 174 F.3d 1193, 1195 (11th Cir. 1999). In this
case, the district court did have authority to depart downward because while
physical impairment is a discouraged basis for departure, an extraordinary physical
impairment may warrant departure. United States Sentencing Guidelines § 5H1.4
(2000); United States v. DeVegter, 439 F.3d 1299, 1306 (11th Cir. 2006).
The district court did not believe it lacked authority to depart downward
based on Waugh’s illness, and so we lack jurisdiction to review the district court’s
decision denying the departure. The court stated that Waugh’s sickle cell anemia is
not “something that would require a downward departure on the basis of illness.”
This indicates that the court understood it had authority to depart on the basis of
illness, but believed that Waugh’s illness did not warrant departure. Likewise,
contrary to Waugh’s contention, the court’s statement that it did not believe
Waugh’s sickle cell anemia was a “basis for a downward departure” does not
reveal ambiguity as to whether the court believed it had authority to depart. That
statement came after the court explained that Waugh’s condition is common in the
federal prison system and that he could be properly cared for in prison. Read in
context, the statement shows that the court did not believe that Waugh’s condition
merited departure.
Because nothing in the record indicates otherwise, we will assume that the
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district court understood it had authority to depart downward. Chase, 174 F.3d at
1195. Thus, we affirm Waugh’s sentence.
AFFIRMED.
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